Hampton v. City of Jacksonville, FL Brief for Appellants

    In t h e

&t<xt?s (Emtrt of Appeals
F oe t h e  F if t h  C ir c u it

No. 19,298

F r a n k  H a m pt o n , et al.,

-v.—
Appellants,

C it y  of  J a ck so n v ille , F lorida , et al.,

Appellees.

a ppea l  fro m  t h e  u n it e d  states d istr ic t  court

FOR THE SOUTHERN DISTRICT OF FLORIDA 
JACKSONVILLE DIVISION

BRIEF FOR APPELLANTS

J ack  G reen berg  
C o n sta n ce  B a k er  M otley  
M ic h a e l  M e l t sn e r  

10 Columbus Circle 
New York 19, N. Y.

E r n e st  D . J ackson  
410 Broad Street 
Jacksonville, Florida

Attorneys for Appellants



I N D E X
PAGE

Statement _.................................. ....................................  1

Specification of Error ........ .........................................  6

A r g u m e n t  ..................................................................... .............  7

C o n c l u s io n ......................................................................  14

T able oe Cases

Anderson v. Moses, 185 F. Snpp. 727 (S.D. N.Y. 1960) 13

Barrows v. Jackson, 346 U.S. 249 ...................................  11
Biltmore Village v. Royal, 71 So. 2d 727 (Fla. 1954) .... 10 
Burton v. Wilmington Parking Authority, 365 U.S. 715

8,9

City of Greensboro v. Simpkins, 246 F. 2d 425 (4th
Cir. 1957) ..............................................................   13

City of Petersburg v. Alsup, 238 F. 2d 830 (5th Cir.
1956) ............................. - ............................................  10

Civil Rights Cases, 109 U.S. 3 ....... ...............................  7
Coke v. Atlanta, 184 F. Supp. 585 (N.D. Ga. 1960) ......  10
Commonwealth of Pennsylvania v. Board of Directors

of City Trusts, 353 U.S. 231 .......................................  13
Cooper v. Aaron, 358 U.S. 1 ....................................... 10,14

Davis v. Schnell, 81 F. Supp. 872 (S.D. Ala. 1949), aff’d
336 U.S. 933 ............................................................   7

Department of Conservation and Development, etc. 
v. Tate, 231 F. 2d 615 (4th Cir. 1956) cert, denied 352
U.S. 838 .....................    13

Derrington v. Plummer, 240 F. 2d 922 (5th Cir. 1956)
10,11,12



11
PAGE

Eaton v. Board of Managers of the James Walker Hos­
pital, 261 F. 2d 521 (4th Cir. 1958) cert, denied 359
U.S. 984 ..................   12

Ex Parte Virginia, 100 U.S. 339 ...................................  7

Hall v. St. Helena Parish School Board, 197 F. Snpp.
649, 651 (E.D. La. 1961) ....................... ................... 14

Kerr v. Enoch Pratt Free Library, 149 F. 2d 212 (4th 
Cir. 1945) ..................................    13

Lane v. Wilson, 307 U.S. 268, 275 ........ .............. ......... 7

Muir v. Louisville Park Theatrical Association, 347 
U.S. 971........           13

Eichardson v. Holman, 160 Fla. 65, 70, 33 So. 2d 641 
(1948) ............................................. ...........................  10

Shelley v. Kramer, 334 U.S. 1     ..... ................. 11
Smith v. Texas, 311 U.S. 728, 732 .................................. 14
Tonkins v. City of Greensboro, 276 F. 2d 890 (4th Cir. 

1958) ..............................    12

S ta tu te

20 Florida Statutes, Chapter 689.18 (1960 Supp.) ......  10

O rd in a n ce

City Ordinance No. EE-16 2



I n  th e

I n t t e f t  Biniim ( t a r t  ui A p p e a l s
F oe t h e  F if t h  C ir c u it

No. 19,298

------- ------- ----------------
F r a n k  H a m pt o n , et al.,

Appellants,

C it y  of J a c k so n v ille , F lorida , et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF FLORIDA 

JACKSONVILLE DIVISION 

-------------------- ---- ------------------------- ----

BRIEF FO R APPELLANTS

Statem ent

On July 7, 1958, appellants, Negro citizens of Jackson­
ville, Florida, instituted a class action against the City of 
Jacksonville, claiming that the city was denying them, and 
other colored citizens similarly situated, the equal protec­
tion of the laws in violation of the Fourteenth Amendment 
to the Constitution of the United States. The complaint 
alleged that the City, its officers and agents, pursued a 
policy of racial segregation in the operation of two mu­
nicipally owned, managed and maintained recreational fa­
cilities, the Brentwood and Hyde Park Golf courses (ft. 4, 
201). The courses had been owned and operated by the 
city for over twenty years (R. 116).



2

Upon plaintiffs’ motion for summary judgment, the 
United States District Court for the Southern District of 
Florida entered its final decree April 1, 1959, effective as 
of April 7, 1959, restraining the defendant City of Jackson­
ville, Florida, its officers, agents, servants and employees 
and their successors in office, from refusing to allow the 
plaintiffs, and other Negroes similarly situated, to use the 
Municipal golf courses upon the same conditions as white 
persons (R. 2). The Court retained jurisdiction for the 
purpose of enforcing the injunction (R. 3).

April 6, 1959, the day before the injunction was to take 
effect, the City of Jacksonville closed the two golf courses 
(R. 202). August 11, 1959, the City Council of the City 
of Jacksonville passed ordinance No. EE-16 authorizing 
the sale of the golf courses upon certain conditions (R. 36, 
202, 203).

On uncontradicted evidence, the District Court found 
(R. 203, 204) that on February 19, 1960, the City sold the 
Hyde Park Golf Course to Fred A. Ghioto for the sum 
of $615,000.00, $15,000.00 was down payment and $600,- 
000.00 a purchase money mortgage in favor of the City; 
on February 29, 1960, the City sold the Brentwood Golf 
Course to Ronald Hurley for the sum of $600,000.00, $10,- 
000.00 down payment and $590,000.00 purchase money mort­
gage in favor of the City.

In the deeds, the City retained certain parcels and ease­
ments for electric and telephone lines, drainage and a 
radio transmitter (R. 11, 12, 17-25) together with right of 
access to and right to repair and maintain the parcels and 
easements (R. 12, 24). With the land, the vendees received 
furnished club-houses, accessory buildings and equipment 
from the City (R. 28,133).

Both deeds contained the following reverter clause (R. 
13, 25):



3

“This conveyance is made upon the express condi­
tion that the property hereby conveyed shall be con­
tinuously maintained by the Grantee, its successors 
and assigns, as a golf course and shall be used only 
for the purpose of a golf course; and if said property 
be not so maintained or should it be diverted to other 
use, said property shall immediately revert to the 
Grantor, its successors or assigns, and it shall be law­
ful for the Grantor, its successors or assigns to re­
enter and re-possess said property and thereafter to 
peaceably hold and enjoy the same as if this conveyance 
had not been made.”

A member of the City Commission which operated the 
courses, decided to close them, and arranged the sale (R. 
121, 115, 122, 131) testified that the reverter clause was 
recommended so “that the Citizens of Jacksonville would 
have golfing facilities” (R. 131), but he made no effort 
to assure that the facilities would be open without racial 
restriction (R. 134).

Roland Hurley, prior to his purchase of the Brentwood 
course, was the golf pro at Brentwood. When the City 
closed the Course, he became the caretaker at a salary of 
$75.00 per week (R. 116). One month before Hurley en­
tered into the contract of sale with the City, he had from 
twelve to fifteen hundred dollars in the Bank (R. 72). 
He borrowed the funds necessary to make a $10,000.00 
down-payment (R. 74).

Fred Ghioto was the golf pro at the Hyde Park Course 
prior to his purchase of the Course (R. 89). When the City 
closed the Course, he became the caretaker at a salary of 
$75.00 per week (R. 116). One month before Ghioto bid 
for the Hyde Park Course, he had approximately four 
thousand dollars in the bank (R. 92). In order to purchase



4

the Hyde Park Course, Ghioto borrowed $17,000.00 (R. 74, 
75). Both Ghioto and Hurley submitted financial state­
ments to the City prior to the sale (R. 94, 124).

Neither the City nor defendants Ghioto and Hurley ad­
duced any evidence to deny that Brentwood and Hyde Park 
golf courses were following and would continue to follow 
a policy of racial discrimination. Ghioto stated publicly 
that the course would be open to the public, but its use 
limited to white people (R. 7, 50). In his answer to plain­
tiffs’ Petition to Modify Final Decree, Ghioto alleged that 
the course would be operated on a private basis (R. 50).

On February 5, 1960, plaintiffs filed a Petition to Modify 
Final Decree alleging that the City:

“ . . . Under the sale retains a present valuable in­
terest in both golf courses and that this interest under 
the sale will anner (sic) to the benefit of the citizens 
of Jacksonville and for said reasons unless the pur­
chasers of both golf courses are enjoined from refusing 
to permit the petitioners and other colored citizens 
similarly situated to use the Hyde Park and Brent­
wood Golf Courses upon the same basis and upon the 
same conditions as white persons are permitted to use 
them, they will be denied the equal protection of the 
law . . . ” (R. 6).

And that

“ . . . The purported sale . . .  is an act of subterfuge 
on the part of the Defendant City of Jacksonville 
in an effort to abridge the rights of the petitioners 
and other colored citizens similarly situated in that 
the . . . price and conditions of each sale are unusual 
and uncommon . . . and . . .  in bad faith” (R. 7).



5

Petitioners asked the District Court to enjoin the sale 
of the courses; make the purchasers parties to the suit and 
enjoin them from refusing to permit petitioners, and other 
colored citizens similarly situated, the use of the golf 
courses upon the same basis as white persons (E. 8).

On February 8, 1960, the District Court ordered Gfhioto 
and Hurley made party defendants (E. 29, 30). A full trial 
was held before the Honorable Bryan Simpson, Judge, on 
June 15, 1961. At the close of plaintiffs’ case, defendants 
moved the Court to dismiss the Petition on the ground that 
upon the facts and the law the plaintiffs showed no right 
to relief, which motion the Court granted on the merits 
(E. 206) on June 22nd, 1961.

The District Court held (E. 204-206):
“The defendant City of Jacksonville had the author­

ity and right to close the two Municipal golf courses 
and to sell the same, notwithstanding the permanent 
injunction entered in this cause on the 1st day of April, 
1959. Tonkins v. City of Greensboro (1958), 162 F. 
Supp. 549, 276 F. 2d 890; Hampton, et al. v. City of 
Jacksonville, supra.

“That the possibility of reverter retained by the 
City on both golf courses did not make the two golf 
courses publicly owned or operated golf courses and 
did not give the Defendant City of Jacksonville con­
trol over the operation of the golf courses which would 
amount to ‘State action’ within the purview of the 
Fourteenth Amendment to the Constitution. Eaton v. 
Board of Managers of the James Walker Memorial 
Hospital (1958), 164 F. Supp. 191, affirmed 261 F. 2d 
521, certiorari denied 79 S. Ct. 941, 359 U.S. 984, 3 
L. Ed. 2d 934.



6

“That no collusion, illegality, fraud or clear abuse 
of discretion has been shown to exist with respect to 
the sale of the two Municipal golf courses and each of 
such sales, to wit: The Hyde Park Golf Course to 
Fred A. Ghioto and the Brentwood Golf course to 
Roland Hurley, was bona fide.

“That the Defendants, Hurley and Ghioto, as owners 
of said respective golf courses, as long as they do not 
violate the reverter clause in their deeds or violate 
the covenants of their mortgages, have a right to the 
undisturbed possession and the right of use of their 
respective golf courses in such way as in their own 
business judgment each considers best to operate” 
(R. 205).

Plaintiffs filed Notice of Appeal to this Court in the 
United States District Court, Southern District of Florida, 
Jacksonville Division on July 12, 1961 (R. 206-209).

Specification o f Error

The Court below erred in failing* to enjoin defendants 
from refusing to permit plaintiffs, and other Negroes sim­
ilarly situated, the use, on a racially nondiscriminatory 
basis, of property sold by the City, so that “citizens of 
Jacksonville would have golfing facilities,” subsequent to 
an injunction to desegregate, when the City retained a 
reverter interest in the property limiting its use to that 
of golf courses; and sold the property for a down payment 
of less than 2.5% of its sale price to former golf course 
employees.



7

ARGUMENT

T he City o f Jacksonville  has m ain ta ined  sufficient 
ow nersh ip  and  co n tro l o f th e  p ro p e rty  to  m ake opera­
tio n  o f th e  p ro p erty  sub ject to the  F o u rteen th  Amend­
m ent.

It is well settled that the Fourteenth Amendment affords 
no protection against purely private conduct, but extends 
as against “State action of any kind . . . which denies . . . 
the equal protection of the laws.” Civil Rights Cases, 109 
U.S. 3, 11; Ex Parte Virginia, 100 U.S. 339. Whatever 
difficulties the courts have encountered applying this prin­
ciple to the particular, one precept stands out: the Consti­
tution is never so inflexible as to permit the indirect ac­
complishment of discrimination which is directly forbidden. 
The protection of the Constitution extends to “sophisticated 
as well as simple-minded modes of discrimination.” Lane 
v. Wilson, 307 U.S. 268, 275; Davis v. Schnell, 81 F. Supp. 
872 (S.D. Ala. 1949) aff’d 336 U.S. 933.

The City of Jacksonville has attempted to accomplish 
by means of an artifice of private ownership what it has 
been enjoined from accomplishing directly. No question 
of the power of a City to close municipal recreational fa­
cilities, or to sell such facilities, when the City divorces 
itself from ownership and control, is involved in this ap­
peal. Rather, the question presented for decision is 
whether a municipality may avoid the requirements of the 
equal protection clause by selling property on extremely 
favorable terms while it retains valuable present interest 
in and control over the use of that property.

Only last term the United States Supreme Court found 
that the restaurant-lessee of a municipal parking authority 
was subject to the proscriptions of the Fourteenth Amend­



8

ment “as certainly as though they were binding covenants 
written into the agreement itself.” Burton v. Wilmington 
Parking Authority, 365 U.S. 715, 726.

In discussing the relationship) of the public authority 
and the lessee the Court stated :

“ . . .  in its lease with Eagle the Authority could have 
affirmatively required Eagle to discharge the respon­
sibilities under the Fourteenth Amendment imposed 
upon the private enterprise as a consequence of state 
participation. But no state may effectively abdicate 
its responsibilities by either ignoring them or by 
merely failing to discharge them whatever the motive 
may be. It is not of consolation to an individual denied 
the equal protection of the laws that it was done in 
good faith. Certainly the conclusion drawn in similar 
cases by the various Courts of Appeals do not depend 
upon such a distinction. By its inaction the Authority, 
and through it the State, has not only made itself a 
party to the refusal of service, hut has elected to place 
its power, property and prestige behind the admitted 
discrimination. The State has so far insinuated itself 
into a position of inter-dependence with Eagle that 
it must be recognized as a joint participant in the 
challenged activity, which, on that account cannot be 
considered to have been so ‘purely private’ as to fall 
without the scope of the Fourteenth Amendment.” 
Burton v. Wilmington Parking Authority, supra, at 
725. (Emphasis added.)

The vendees in the instant case are no less interrelated 
with the City than the lessee in Burton. The two golf 
courses involved, valued at over $1,000,000.00 dollars, were 
maintained by the City with public funds and operated by 
the City for over twenty years, before the decree of the



9

United States District Court ordering an end to racial 
segregation prompted the City, first, to close, and then, to 
sell them to two golf course workers. The vendees, who 
formerly operated concessions at the courses, were re­
ceiving $75.00 per week salary from the City as caretakers 
at the time of the sale (R. 116). They paid less than 2.5% 
of the purchase price of the property (pp. 203, 204), leav­
ing the City able to repossess for nonpayment and with 
the substantial interests of a mortgagee for over 97.5% 
of the value of the property. Moreover, the vendees had 
to borrow to pay even these unusually small down pay­
ments. Quite aside from consideration of motive, this con­
duct speaks eloquently of the posture of this cause. “Only 
by sifting facts and weighing circumstances can the non- 
obvious involvement of the State in private conduct be 
attributed its true significance.” Burton v. Wilmington 
Parking Authority, supra at 365 U.S. 722.

By insertion of the following clause in the conveyance:
“This conveyance is made upon the express condi­

tion that the property hereby conveyed shall be con­
tinually maintained by the Grantee, its successor and 
assigns, as a golf course which shall be used only for 
the purpose of a golf course; and if said property be 
not so maintained or should it be converted to other 
use, said property will immediately revert to the 
Grantor, its successor or assigns, and it shall be law­
ful for the Grantor, its successors or assigns to re-enter 
and re-possess said property and thereafter to peace­
ably hold and enjoy the same as if this conveyance had 
not been made.”

the City has retained not only a valuable present interest 
in the properties conveyed, and a severe limitation on the 
rights of the vendees, but also the assurance that the prop­



10

erties conveyed will always be used as the City wishes. 
As far as the Fourteenth Amendment is concerned, by 
retaining a present interest in the properties and absolutely 
defining the use to which the properties may be put, the 
City has made those who operate the courses instrumentali­
ties of the State to the same extent as if title had not 
passed and the transaction had been cast in the form of a 
leasehold. Certainly, the form in which the State’s prop­
erty interest is cast cannot determine appellants’ consti­
tutional rights. Cf. Cooper v. Aaron, 358 U.S. 1, 4, 19. And 
this Court has rejected the contention that a municipality 
can avoid the Fourteenth Amendment by acting in a “pro­
prietary” capacity. City of Petersburg v. Alsup, 238 F. 2d 
830 (5th Cir. 1956).

This Court has held a lessee in County building may not 
exclude Negroes even assuming there be no express res­
ervation of control under the terms of the leasehold or 
purpose of discrimination on the part of the County. Der- 
rington v. Plummer, 240 F. 2d 922 (5th Cir. 1956). See 
Cole v. Atlanta, 184 F. Supp. 585 (N.D. Ga. 1960).

The City of Jacksonville has not only retained a valu­
able interest in the property conveyed1 but so conditioned 
the sale of the remaining interest that segregation would 
be inevitable.

When the City closed the courses rather than integrate, 
the City determined that the courses could be operated only 
at a loss if they were integrated (E. 39, 122).

1 In Florida, reversionary interests are present interests which may be 
conveyed or devised. Richardson v. Holmcm, 160 Fla. 65, 70, 33 So. 2d 641 
(1948). The Supreme Court of Florida has found reverters valuable enough 
an interest to invoke the obligation of contracts clause of the Constitution 
to prevent their abrogation. Billmore Village v. Royal, 71 So. 2d 727 (Fla. 
1954). By statute, Florida has limited reverters to twenty-one years duration 
while specifically providing that the restrictions do not terminate and may be 
enforced in any court of competent jurisdiction. 20 Florida Statutes Chapter 
689.18 (1960 Supp.) (E. 45).



11

But the City sold the properties to be operated as golf 
courses and golf courses only (R. 13, 25) in order that “the 
citizens of the City of Jacksonville would have golfing fa­
cilities” (R. 131,132, 134).

This logic of the City’s proves too much. Accepting the 
premise put forth by the City, the only possible conclusion 
is that the vendees were given a choice of losing money or 
segregating. For, if the properties can only be operated 
as golf courses and as golf courses they cannot earn a 
profit unless segregated, then, there could be absolutely no 
doubt that the vendees would operate them on a segregated 
basis. Otherwise the City would soon repossess for non­
payment of the mortgage.

It is no answer to this conclusion that the vendees were 
private individuals able to decide freely whether to op­
erate the courses on a nondiscriminatory basis. The City 
imposed the condition that made any such free choice im­
possible when it limited the use of the properties to golf 
courses. And there is little in the financial condition of 
the vendees, as revealed to the City Council, to make one 
conclude that they could have any real choice in the matter. 
Given the limitation on use, the vendees’ financial condition, 
and the City’s assumption that the courses could not be 
operated at a profit if desegregated, racial discrimination 
in the operation of the courses was as explicitly willed as 
if written into the deeds themselves by restrictive covenant.2

In the District Court, the City argued that because the 
Jacksonville City Council declared the two golf courses 
surplus property, their sale came within a dictum suggested 
in Derrington v. Plummer, supra. But therein the Court 
stated:

2 This device was, of course, closed to the City. Shelley v. Kramer, 334 
U. S. 1; Barrows v. Jackson, 346 U. S. 249.



12

“No doubt a County may in good faith lawfully sell
and dispose of its surplus property, and its subsequent 
use by the Grantees would not be State action. Like­
wise, we think that when there is no purpose of discrim­
ination, no joinder in the enterprise, or reservation of 
control, by the County, it may lease for private pur­
poses property not used nor needed for County pur­
poses . . . ” Derrington v. Plummer, supra at 925. 
(Emphasis added.)

The Council’s determination that the two golf courses 
were surplus is an artificial determination in the face of 
the City’s limitation of use of the properties to golf courses 
and the positive stipulation in the ordinance empowering 
sale (R. 36) and the deeds to this effect (R. 13, 25). The 
City, moreover, has maintained throughout that one of the 
functions of the restriction on use of the properties was 
to meet a public need—“preserving golfing facilities for 
the citizens of Jacksonville” (R. 134, 131, 132). Even ac­
cepting that the determination of the City Council made 
these properties surplus, the conditions of sale do not meet 
the test set out in Derrington, supra, for there the Court 
stated that there must be no purpose of discrimination, no 
reservation of control, no joinder in the enterprise and 
the property must not be used nor needed for public pur­
poses.

Appellees’ reliance on Tonkins v. City of Greensboro, 276 
F. 2d 890 (4th Cir. 1958) and Eaton v. Board of Managers 
of the James Walker Hospital, 261 F. 2d 521 (4th Cir. 
1958) cert, denied 359 U.S. 984 is misplaced. In Tonkins the 
City withdrew completely from the ownership of the pool, 
retaining neither interest in the property nor control over 
its use. In Eaton a reversionary interest had been created 
in a deed of 1901, but the Court of Appeals held that prac­
tical control of the operation of the Hospital by the City



13

had long ceased by the time the suit was brought. Far 
more to the point is the decision of the Court of Appeals 
for the Fourth Circuit in Kerr v. Enoch Pratt Free Li­
brary, 149 F. 2d 212 (4th Cir. 1945) holding that the Board 
of Trustees of a library was an agency of the State, despite 
the fact that the Board had been vested with the power of 
self-perpetuation, because of the “degree of control over 
the activities and existence of the library on the part of 
the State,” 149 F. 2d at 219.

There are numerous other cases to the same effect. De­
partment of Conservation and Development, etc. v. Tate, 
231 F. 2d 615 (4th Cir. 1956) cert, denied 352 U.S. 838 
involved the refusal to permit Negroes to use the bathing 
facilities in a seashore park owned by the State but op­
erated by a lessee. The Court of Appeals held that equal 
protection of the laws “may not be abridged by leasing of 
the parks with ownership retained in the State,” 231 F. 2d 
at 616. City of Greensboro v. Simpkins, 246 F. 2d 425 
(4th Cir. 1957) dealt with discrimination on a golf course 
constructed by the City on City owned land but operated by 
a lessee. Muir v. Louisville Park Theatrical Association, 
347 U.S. 971 related to discrimination by the lessees of an 
amphitheatre in a City park but leased to a theatrical asso­
ciation. And see Commonwealth of Pennsylvania v. Board 
of Directors of City Trusts, 353 U.S. 231; Anderson v. 
Moses, 185 F. Supp. 727 (S.D. N.Y. 1960).

Under the rule of the cases cited above, if the vendees 
had leased the properties from the City and then followed 
a pattern of racial discrimination, they would be subject 
to the Fourteenth Amendment. That the transaction was 
cast in the form of a sale cannot change this result. Con­
trol was retained in the form of a sharp limitation on use. 
The City owns an interest in the properties. The City holds 
a mortgage for over 97.5% of the sale price. Rights guar­



14

anteed under the Fourteenth Amendment cannot be nulli­
fied indirectly through evasive schemes for segregation 
whether attempted “ingeniously or ingenuously.” Smith v. 
Texas, 311 U.S. 728, 732; Hall v. St. Helena Parish School 
Board, 197 F. Supp. 649, 651 (E.D. La. 1961); Cooper v. 
Aaron, 358 U.S. 1,17.

CONCLUSION

W h e r e fo r e , for the foregoing reasons, it is respectfully 
submitted, that the judgment of the Court below should 
be reversed.

Respectfully submitted,

J ack  G reenberg  
C o n sta n ce  B a k er  M otley  
M ic h a e l  M e l t sn e r  

10 Columbus Circle 
New York 19, N. Y.

E r n e st  D . J ackson  
410 Broad Street 
Jacksonville, Florida

Attorneys for Appellants



38